Senator Feingold generally seems uninterested in what his fellow Democrats think. For example, he voted for A.G. Ashcroft, against A.G. Gonzalez, for C.J. Roberts, against J. Alito, against the U.S.A. Patriot Act, etc.

I think he thinks a censure under these circumstances is an appropriate response to what the majority of legal scholars seem to think is an unwarranted, unnecessary and unlawful extension of executive power that also happened to violate FISA.

It's all designed by Feingold to put fellow Senators who, like him, have presidential ambitions, on record on this issue. He's banking that when 2008 rolls around, the public will be so solidly against President Bush's position that voters in the Democratic primaries won't vote for Dem senators who didn't support his censure effort and that in the general election, GOP senators will be similarly spurned by the general electorate.

It's an interesting ploy by a guy whose chances of being nominated or elected are, I think, nominal at best.

It will be particularly interesting to see how Senators Kerry, Clinton, Biden, and Bayh respond in particular.

I realize you like the guy, Ann, but even Dr. Dean seemed like a somewhat reasonable choice prior to his courting of his party's fringe in 2000. If that's Feingold's angle, he's only going to get worse before his planned swerve back towards sanity...

John McCain Mr. Chief Justice, I intend to vote to convict the President of the United States on both articles of impeachment. To say I do so with regret will sound trite to some, but I mean it sincerely. I deeply regret that this day has come to pass.

I bear no animosity for the President. I take no partisan satisfaction from this matter. I don't lightly dismiss the public's clear opposition to conviction. And I am genuinely concerned that the institution of the Presidency not be harmed, either by the President's conduct, or by Congress' reaction to his conduct.

Indeed, I take no satisfaction at all from this vote, with one exception--and an important exception it is--that by voting to convict I have been spared reproach by my conscience for shirking my duty.

The Senate faces an awful choice, to be sure. But, to my mind, it is a clear choice. I am persuaded that the President has violated his oath of office by committing perjury and by obstructing justice, and that by so doing he has forfeited his office.

As I recall, John McCain didn't have all of his Republicans with him either.

Oh, and the answer to your question is because it is called "leadership". It's not being afraid to do the right thing. It's not being afraid to speak truth to power. It is the antithesis of the triangulation you sometimes seem to prefer. It's because it takes guts to stand point and face the enemy. It takes strength to start the ball rolling.

Is it leadership if no one follows? If you go ahead when you know you're just showing up your fellow partisans, what are you really doing? You seem to be saying, I'm the only one here with principles. I know that's the essence of Feingold. I get it.

Washington: Sandra Day O'Connor, ... has said the U.S. is in danger of edging towards dictatorship if the party's Right-wingers continue to attack the judiciary.

... ``It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.'' ... Ms O'Connor said, ``pose a direct threat to our constitutional freedom'', and she told the lawyers in her audience: ``I want you to tune your ears to these attacks ... [Ms. Althouse you] have an obligation to speak up.

First they came for the Jewsand I did not speak outbecause I was not a Jew.Then they came for the Communistsand I did not speak outbecause I was not a Communist.Then they came for the trade unionistsand I did not speak outbecause I was not a trade unionist.Then they came for meand there was no one leftto speak out for me.Pastor Martin Niemöller

Yes, it is leadership even if no one follows.

Of course, you don't know that no one follows. The resolution was introduced at 4pm this afternoon. It will be at least 24 to 48 hours before it will be voted on.

Leadership I think is doing something that gets people to follow. You can't have leadership without followers, and he doesn't seem to have any here, at least in the Senate. This is the exact opposite of leadership.

One of the complaints with John Kerry was that in 20 years in the Senate, he never really offered any leadership on anything. If he couldn't inspire any of his fellow Senators to follow his lead in anything whatsoever, how could anyone expect that he could inspire that in the American people?

Fiengold at least has some legislative achievements, no matter how questionable (I am thinking right now of McCain-Feingold "Campaign Finance Reform" that so screwed up the last election).

No, this doesn't show leadership, but rather pandering to the nutso left wing of the Democratic party.

I know Feingold probably has presidential ambitions, but isn't it at least possible he's doing it because he thinks it's the right thing? The President broke the law, and as Feingold said, we're so scared we won't stand up.

Public support cannot be the only test. Clinton was *impeached* for far less than what Bush has already "accomplished."

I'm watching the re-run of his speech on CSPAN right now. He points out that FISA gives a 15-day window for warrantless searches after a declaration of war. How can one argue with a straight face that open-ended warrantless searches with no oversight are legal? Even if they are legal, who is checking?

If there aren't going to be any hearings, then why not a censure expressing disapproval?

Senator Specter answers Feingold and after rebuking his points and talking about the President's possible inherent power under Article II, he backpedals and says that the Senate cannot judge the legality of the NSA surveillance program because Gonzales wouldn't really tell what the program is.

Can you imagine if Clinton had pulled something like this? He would have been *savaged* by the right.

You are talking about the same majority of legal scholors who were behind the recent 8-0 loss of FAIR in the Supreme Court. How many of them came out and suggested that the FAIR position was so weak that it wouldn't even get the votes of at least one of the liberals on the Court? Rather, many of them signed on.

The problem with the opinion of this purported majority of legal scholors is that it is based on facts not in evidence. Not just that a lot of the facts aren't out, but often in the face of repeated assertions by the Administration to the contrary of facts they assume. It also gives very short shrift to the Administration's Article II and statutory construction arguments.

But then, the "legal scholors" don't have any real stake in this. The Senators do, which is why they aren't about to vote in favor of censure. They know that it is (or was) a good program, and if it came to the floor of the Senate, would mostly vote for it. They are grandstanding for their liberal base, but know that voting against the program would be political suicide - which is why the Republicans are so gleeful about Feingold's censure effort.

I am not referring to the FAIR law professors at all - several conservative commentators have indicated their belief that the program is unconstitutional and in violation of FISA as well. You can Google to figure that out or go to Volokh Conspiracy and look the analysis contained there. Several administration NSA staffers and DOJ attorneys have also indicated their objection to it.

You seem apparently content with a program that noone can find out about and has no true legislative or judicial oversight. Assume a J.E. Hoover-type is head of the NSA program, are you happy with his apparent unchecked authority? I think any reasonable person would have a serious problem with unchecked executive authority.

This is especially true since FISA itself gives the executive branch expansive authority. (Where in the 4th amendment does the constitution authorize post-search warrants? Any strict constructionists out there?) I have spoken to several DOJ friends - it is not like it is hard to get a warrant. In fact, over 18,000 FISA warrants were requested and only 5 or so were denied.

I really don't think the generally well-educated populace in Wisconsin is going to hold it against Sen. Feingold for standing up for the legislative branch authority here. I'm not so sure about the rest of the country, but I do not think he's doing anything wrong. My 2 cents.

I'm a Democrat. And as Democrats, we have a lot of big issues we could be talking about, everything from health coverage for everyone to tying trade agreements to environmental, labor and corruption standards commensurate with our own, to pointing out that our plan for abortion, emphasizing sex ed, family planning and birth control, has reduced the number of abortions by about a quarter since the early 1990's while conservatives have been butting their heads against the wall.

But I don't understand why instead of doing that some Democrats are pushing stuff like this or impeachment-- there isn't a chance in Hades that it will succeed, and even if it did, the reward for all the effort it would take would be President Cheney??

Besides, if the intent is to censure Bush in the court of public opinion, us Liberals are much better off if we just step back and let the news take its course. For instance, just today, the judge in the Moussaoui case announced that she is considering chucking the entire death penalty phase because one of the government lawyers got caught sharing trial testimony with witnesses and rehearsing them on what they should say. And last week it was the Dubai ports deal, and the week before that the slow reporting on the Cheney hunting incident, and the week before that Chertoff admitting failure during Katrina.

I'd say as a Democrat we are most blessed when we simply let the news about this crew unfold and say nothing.

For a post on the Bush administration, I have the ideal word verification: dorkz

Well, I have spent my time at Volokh, and have come to apparently the opposite conclusion as you did. And the same people (including me), were saying the same thing, time and time again. Hamdi said this - no it said that, Jackson's Youngstown concurrence is applicable, or not, etc.

One thing that did seem to be a concensus there was that the 4th Amdt. was inapplicable, or at least not infringed. Why? One reason is that international communications have no expectation of privacy. Another is that there is an exigent circumstances exception, and the Administration is making an strong argument that that applies here. (I am willing to look at any case law you have to the contrary). Let me add though that 4th Amdt. claims stand on their own - FISA has no bearing on them whatsoever. Congress can create a statutory right, but not a Constitutional one.

FISA goes a long way beyond the 4th Amdt. Traditionally, surveilance of international communications was considered part of a President's power as Commander in Chief and necessary to his duty to protect us (and the Constitution). Thus, international surveilance of communications was routine during both World Wars - without any thought of a need for a warrant. It was only an emoboldened Congress facing a weakened Executive (as a result of Watergate), that the former was able to put limits on interception of international communications by the later.

So, your suggestion that FISA grants the President any power he didn't already have is historically inaccurate. Rather, some of what presidents had been doing routinely for decades was made illegal.

The biggest problem with FISA here is that technology has changed significantly since its enactment, as has the threats we face. In the past, even ten years ago, it was fairly straight forward to tap international calls without running afoul of FISA - all that had to be done was to do it outside the U.S. For example, communications sattelites are not, by necessity, over the U.S. (they are geosynchronous, which means, they have to be over the equator). Most of our international communications now goes by fiber, which cannot realistically be tapped other than at the switches, and the only place where we can get at enough of those switches is here in the U.S. The result is that the surveilance moved from 50 USC 1801(f)(1) to (f)(2), which is significant here, since it is only illegal under (f)(1) if the targetted individual is a U.S. Person (i.e. legally here) in the U.S. Under (f)(2), targetting is irrelevant, as is whether the person in the U.S. is here legally. According to repeated statements by the Administration, most notably, repeated statements by the AG, the vast bulk of the interceptions are of conversations where the target is outside the U.S.

I think though that one of the biggest mistakes made by those suggesting that the Administration could conduct the program within FISA is their suggestion that the Administration could use the 72 emergency orders provision. The AG has repeatedly pointed out why that doesn't and can't work.

I disagree that there is any concensus in this area. But the place where there does appear to be a concensus is that the bulk of the American people are in favor of the program. Thus, if it would violate FISA, they would be in favor of amending that act accordingly (IMHO, mostly by merging 1801(f)(1) and (2)).

Geez, if he wanted to differentiate himself he could have proposed some legislation--the lack of ideas meme seems to be taking hold. Carping about the President hardly makes a case for Finegold being different.

He can't muster enough support to censure a lame duck President who is no longer popular with the masses. What the hell does that tell you about the man and his ideology? Hacks are a dime a dozen and always have been.

"....but isn't it at least possible he's doing it because he thinks it's the right thing?"

Baawhhhhaaaaaaaa.......ahhhhhh {wiping away tears}...good one. He is a POLITICIAN but anything is a possible.......

He is attempting to revive interest in the NSA wiretapping to score political points and to increase his recognition quotient against Clinton. I guess failing to get any support for censure will do it.

But how realistic is what DNR Mom said... "Perhaps Mr. Feingold's censure is just an appetizer before the start of the impeachment process."?

IS THERE REALLY A LEGAL CASE AGAINST GEORGE W. BUSH?"In ARTICLES OF IMPEACHMENT AGAINST GEORGE W. BUSH, the experts at one of our nation's leading institutions of constitutional scholarship, the Center for Constitutional Rights, set out the legal arguments for impeachment in a clear, concise, and objective discussion. In four separate articles of impeachment detailing four separate charges –warrantless surveillance, misleading Congress on the reasons for the Iraq war, violating laws against torture, and subverting the Constitution’s separation of powers – it is, say the CCR attorneys, a case of black letter law, with abundant evidence."

If, by the time of the 2008 election, the vast majority of the American people think George W. Bush is a walking disaster, the Republicans will have only one choice.

Take the name of any Democratic candidate willing to criticize his leadership and place it in a sentance that begins (for example)Russ Feingold and the Michael Moore, Moveon.org, Nancy Pelosi, Howard Dean, Ted Kennedy Democrats....(the rest of the sentance is not important. It's the name attachments that are important.)Bush's popularity rating will move from 30 percent to 35 percent.The NY Times and Washington Post will run headlines about Bush's "surging approval" .

Let's say for the sake of argument that we succeeded beyond our wildest dreams, and that the house voted out articles of impeachment against George W. Bush, and he was convicted in the Senate. So then, we have President Dick Cheney. Like, yeah, that would really do us a whole lot of good. Just like Bush, except that he'd be eligible to run as an incumbent in 2008 if he wanted to.

And let's say that we even got, in addition to impeaching Bush, the House and Senate to agree that failing to pay for a Texas bird license was a 'high crime or misdemeanor' and they also impeached Cheney. In that case, we'd get President Dennis Hastert, a younger guy who would also be eligible to run as an incumbent in 2008.

I understand the passion of my co-bloggers on the left, and I agree with them about the wrongs of the Bush administration, but I just don't see how any of this gets us anywhere.

Feingold is generally a maverick; and I think he thinks he's making a point about FISA.

What's sadly the case with the Democrats is that they were slow to the gate. BUT! in advance of Feingold's speech on the floor, the Vice President spoke out against Feingold's proposal; and Arlen Specter interrupted Feingold to get a copy of the motion before it was presented.

Now I know that there is an opposite view to Feingold's about FISA and executive authority. And also-a-rule's-man-Specter wonders if the Senate even can censure the President on this matter yada, yada.

But maybe Feingold is onto something. If Feingold did not have a point, why was it necessary for Repubs to over-react? Because the Repubs have worked better as an oppoisiton party than the party of leadership? Perhaps, yes: Repubs have great defense against weak-willed Dems. Foreign insurgents, mixed record.

Feingold has jumped the shark. Frist offered an immediate vote, but the dems declined. Frist then offered to vote first thing this morning which really riled the dems who had to scramble to get it sent to a committee where they hope it will be safe from ever coming up for a vote. Pathetic.

This is just like Murtha's call to retreat from Iraq. Even Murtha voted no when the Republican's called his bluff.

Not to mention Carnivore and the Clipper Chip. Imagine that - the same folks who are getting all high and mighty, today, about tapping international calls between terrorists fought mightily to elect a man who championed legislating a back door into every computer sold in America.

Then again, the same people who claim we should pull our troops out of Iraq in the interest of "peace" fall deadly silent whenever one of their Iraqi "freedom fighters" blows up a mosque, blows up a market, murders teachers in front of their students, or videotapes the sawing off the head of some captive.

As Mr. Reynolds is fond of saying, they aren't anti-war, they're just on the other side.

Yes, in Madision, WI, the Bezerkeley of the Midwest, otherwise referred to as 30 square miles surrounded by reality.

Except that the people who work with me come from six different counties to work here.

It's been my experience, having lived in WI for 20+ years, that voters here like consistent politicians who do not twist in the wind. Sen. Feingold is like that. That's probably why he gets re-elected.

Let's say for the sake of argument that we succeeded beyond our wildest dreams, and that the house voted out articles of impeachment against George W. Bush, and he was convicted in the Senate. So then, we have President Dick Cheney.

Sure. But like we on the Right really wanted Al Gore to become President, and have an incumbent's stature going into 2000.

Sometimes people do it just out of conviction, and impeaching George W. Bush for progressives, is as basic pro-their-convictions as you can get.

Like, yeah, that would really do us a whole lot of good. Just like Bush, except that he'd be eligible to run as an incumbent in 2008 if he wanted to.

I know you said you preambled by saying "for the sake of argument", but as you know, Eli, there's no way Dick Cheney will run for president.

Not only has he said so many times, but even with the epithet of "politicians lie all the time" hanging around him, most people get the sensation he really isn't interested in the job.

So no fear on that account.

In fact, having Dick Cheney as president might even HELP the Dems a LOT in 2008.

Think Gerald R. Ford, baby.

And let's say that we even got, in addition to impeaching Bush, the House and Senate to agree that failing to pay for a Texas bird license was a 'high crime or misdemeanor' and they also impeached Cheney. In that case, we'd get President Dennis Hastert, a younger guy who would also be eligible to run as an incumbent in 2008.

Denny Hastert is slightly more electable, but there's no way Republicans would jump on the fire for him.

He looks too much like Ted Kennedy.

I understand the passion of my co-bloggers on the left, and I agree with them about the wrongs of the Bush administration, but I just don't see how any of this gets us anywhere.

MadisonMan: It's been my experience, having lived in WI for 20+ years, that voters here like consistent politicians who do not twist in the wind. Sen. Feingold is like that. That's probably why he gets re-elected.

And who proposed this censure effort, only to stand alone, twisting in the wind all by himself? The same Don Quixote who was the lone vote against the Patriot Act: Russell Feingold - "Nobody's Senator but Al-Qaeda's"

Democratic senators, filing in for their weekly caucus lunch yesterday, looked as if they'd seen a ghost.

"I haven't read it," demurred Barack Obama (Ill.).

"I just don't have enough information," protested Ben Nelson (Neb.). "I really can't right now," John Kerry (Mass.) said as he hurried past a knot of reporters -- an excuse that fell apart when Kerry was forced into an awkward wait as Capitol Police stopped an aide at the magnetometer.

Hillary Rodham Clinton (N.Y.) brushed past the press pack, shaking her head and waving her hand over her shoulder. When an errant food cart blocked her entrance to the meeting room, she tried to hide from reporters behind the 4-foot-11 Barbara Mikulski (Md.).

"Ask her after lunch," offered Clinton's spokesman, Philippe Reines. But Clinton, with most of her colleagues, fled the lunch out a back door as if escaping a fire.